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Policy of Not Commenting on
Pending Litigation is Misguided
I am willing to bet that within the past day or two, you've read a news article about a lawsuit involving some type of organization, be it a corporation, LLC, nonprofit or government entity. I am further willing to bet that within the past week's worth of those articles, you've come across a statement by the author of the article or a representative of one of the parties to a lawsuit that said something about one of the parties declining comment, "citing the pending litigation." In other words, that party is not going to comment on the litigation even though the litigation is happening now, the public is aware of the lawsuit due to this current round of media coverage and there is the potential for further media coverage down the road.
Many organizations have policies of not commenting on pending litigation. One or more of your clients may have such a policy. Perhaps the client retained you long after the policy was in place. Perhaps you advised the client on adopting such a policy. Either way, such a policy is misguided. For organizations that have adopted such a policy, it will do more harm than good to the organization's reputation, its legal strategy, and most of all, its business interests. Below are what I believe to be the four most compelling reasons for why such a policy is misguided.
• Silence on pending litigation likely contradicts an organization's ongoing communications strategies.
Organizations hire employees or outside firms to handle their marketing, advertising, public relations and social media because they want to tell their stories to their key audiences, such as employees and their own customers. In doing so, organizations cultivate relationships with these audiences where the hoped- for return on investment is a positive reputation and increased sales, donations, etc. The content of these communications may run the gamut from information about products and the organization to limited-time promotions to statements about political issues. By communicating directly and frequently with key audiences, organizations aim to be perceived by those audiences as authentic and credible. And yet, when there is pending litigation, many in-house attorneys and their executives think their organizations' interests are better served by clamming up and not commenting on a lawsuit that (under most circumstances) is taking place in public and creating public documents—documents that may contain facts and allegations that could damage their organizations' reputations and abilities to solicit business, donations, etc. in the future. This silence will cause key audiences to doubt the authenticity and credibility of both these organizations and their communications efforts because it will become clear that the organizations do not believe in transparency and open lines of communication with their key audiences. By embracing this silence, organizations with a "no comment" policy are acting in a way that is inconsistent with the authenticity and credibility they are trying to build with their key audiences through their regular, nonlitigation-related communications efforts. It is a short jump from contradicting communications efforts to alienating key audiences. It is a mere hop from alienating key audiences to losing their business or donations.
• Speaking about pending litigation will not "make it worse."
An organization allegedly did something wrong. The opposing party has filed suit. The majority of the unflattering documents and emails have long ago been created. Damaging deposition testimony is forthcoming, but will be limited to what the witness knew about the topics he is questioned about. Trial may be forthcoming but will be limited to evidence relevant to the facts of the case. With that in mind, how exactly will an organization make the litigation worse by responding publicly to a lawsuit in a way that is not defamatory and complies with all applicable laws and regulations concerning disclosures? By inviting discovery requests about the public response that has nothing to do with the merits of the lawsuit? Those can easily be objected to and likely struck. By inviting an adversary to use the media as well? They are entitled to do so, too. These are trick questions. When handled by an experienced communications professional or attorney, speaking about pending litigation will not make the litigation worse.
• The Rules of Professional Conduct do not prohibit public statements about pending litigation.
Pennsylvania Rule of Professional Conduct 3.6—which mirrors the American Bar Association's Model Rule of Professional Conduct 3.6—imposes a constitutionally-permissible restriction on attorneys' speech regarding litigation matters they are participating in. Rule 3.6(a) states that attorneys "shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Rule 3.6(b) creates a safe harbor of between six and 10 categories of statements (depending on whether a matter is civil or criminal) that will not violate 3.6(a). And Rule 3.6(c) exempts from 3.6(a) statements that reasonable attorneys believe are "required to protect a client from the substantial undue prejudicial effect of recent publicity" that was not initiated by the attorney or attorney's client so long as the statement is "limited to such information as is necessary to mitigate the recent adverse publicity." In addition, Rule 3.6 only prohibits attorney speech; it does not restrict what clients are permitted to say about pending litigation. Although attorneys cannot use their clients to make public statements the attorneys themselves would be restricted from making under the ethics rules, Rule 3.6 only restricts attorney speech. An organization is free to make public statements should they so choose. Either way, Rule 3.6 is not a convincing basis for why an organization should stay silent regarding pending litigation.
• Opposing counsel would fully endorse such a policy.
An organization's refusal to comment on pending litigation is akin to its legal team watching opposing counsel file document after document in court while that legal team sits back, does not file a single response, and simply assumes that a judge or jury will understand the organization's argument despite not making any effort to guide that decision. There is no doubt that opposing counsel would endorse that strategic decision. In doing so, the legal team would have ceded control of the litigation to the adversary, allowing it to shape—unimpeded and unchecked—the operative facts and applicable law at issue. It is no different in the court of public opinion. By not commenting on pending litigation, an organization is letting its adversary's statements shape the public's perception of the litigation, regardless of whether those statements are in legal filings or public comments outside of court. And by allowing its adversary the unimpeded and unchecked ability to mold the litigation in a way that best suits its interests, the organization is steering itself toward reputational harm and a settlement value that is likely moving in the opposite direction from where its legal team is trying to drive it. Neither is good for business. An organization's "no comment" policy will likely make its legal team's job more difficult while simultaneously making opposing counsel's job easier.
An organization's policy of not commenting on pending litigation is misguided. The policy is bad for the organization's reputation, legal position, and ultimately, its business. Most attorneys market themselves as not simply attorneys but business advisers. If I am describing you, advise your clients to comment on pending litigation. Otherwise, they will suffer self-inflicted wounds each time a legal dispute they are involved in is made public.
Special to the Law Weekly Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a boutique law firm that makes its clients' cases in the court of public opinion. Contact him at 215-454-2180 or @waynepollock_cs on Twitter.
Reprinted with permission from the March 14, 2017, online edition of The Legal Intelligencer/Pennsylvania Law Weekly © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.
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